Round up: Personalisation, Disability Hate Crime, the role of CQC and the future of services after Winterbourne View

It’s been a busy week in adult social care, and I’m struggling to keep up – so I’ve selected a few issues that have caught my eye and offered links and comments.

Personaliation and Resource Allocation Systems

I’ve been bowled over by the response to last week’s blog post on personalisation and Resource Allocation Systems. Clearly it’s a topic of interest to lots of people. Fighting Monsters has written a great post about it here, in which she describes her own experiences of working with the RAS and questions whether the personalisation dream is dying. Mithran Samuel at Community Care has got some interesting comments from various organisations on transparency and RAS’s – including the councils. And I’ve also been pointed to this brilliant post by Allan Norman on the Cambridgeshire judgment. He comments:

It seems all too easy to predict a chain in which:

first, services are provided in cash rather than in kind;

then, the link between the value of the care and the amount of the cash payment is obscured;

next, that link is formally severed;

finally, it is the service user’s problem that budgets and targets drive the cash payment with no reference to need whatsoever

The EHRC have published the report from their inquiry into disability hate crime. It is called ‘Hidden in Plain Sight’, and explores the issues around harassment and abuse of disabled people in the community from a range of perspectives including a thorough analysis of the problems faced by disabled people in accessing justice. This picture, from p151 of the report, says it all to me really:

The EHRC inquiry reiterates several important points made by previous reports, including this report (‘Getting Away With Murder’) for Scope in 2008 by Katherine Quarmby. It highlights how people with disabilities face serious practical and personal obstacles to reporting and prosecuting harassment against them, including disbelief and a failure to take seriously the impact it has upon their lives. The report highlights 10 fairly high profile cases of disability hate crimes, and recommends that Serious Case Reviews (SCR) be carried out wherever a “vulnerable adult” is murdered. It cites the SCR into the death of Steven Hoskin in Cornwall as an example of how lessons can be learned; you can read a copy of the SCR by Margaret Flynn here.

The role of the Care Quality Commission

A correspondent of mine brought to my attention a recent report by the CQC reviewing their regulatory model, which was prepared for a board meeting on 14th September. The report suggests the CQC are engaging in reflection on both their role as a regulator, and how they carry out their responsibilities, and is well worth reading for anyone interested in these issues. The review group affirmed that the principles behind the regulatory model were sound, but considered that there were problems with its operational delivery, and it faced risks from external pressures including:

The current model failing to identify a provider’s non compliance with essential standards in a timely way or action to address identified non-compliance not being sufficiently swift

A view amongst some regulated providers that the current model is not adding value or is less relevant to their sector

A willingness on the part of government to increase the scope of regulation and/or the responsibilities of CQC but not to increase the resources available

Changes in the structure, governance and operations in the health and social care sectors as a result of reform that change the nature of what needs to be regulated and the local oversight mechanisms that exist

Failure to convey the agreed role of CQC in the overall landscape

Lack of clarity about the relative roles of different regulators (page 8)

The review group had several concrete recommendations for improvement, including reviewing the guidance for inspectors about making judgments of compliance and when to take enforcement action. They also seek to reduce the caseload (‘portfolio’) of front-line inspectors. They are running a pilot scheme which looks quite interesting, although I doubt it will be uncontroversial as it involves reducing the breadth of inspections:

CQC has also begun a national pilot to test out a new methodology for carrying out planned reviews of compliance. Instead of requiring a check of all 16 quality outcomes on every visit, this new methodology involves inspections starting with a focus on a smaller number of outcomes. These ‘scheduled inspections’ should enable inspectors to more quickly identify non-compliance through visiting more locations and more direct observation of people’s experience of care. The initial outcomes selected will differ according to the type of service being inspected, with fewer outcomes checked for those service types where there is deemed to be less risk. (p11)

However, given the CQC are be operating within very rigid resource parameters, perhaps more inspections against targeted standards will be better than the overall decline in inspections we have seen in recent months and years.

Of particular interest to me in this report, is an overall sense of the CQC as a body who is not entirely sure of its role and identity. Frequent reference is made to the need to promote greater public awareness and understanding of CQC’s role, in order to ‘manage expectations’. I have to say, by the end of the report I was unclear what kind of ‘expectations’ we – the public – are meant to have of CQC so I would welcome greater engagement with them on this issue. On the one hand CQC seem to be sensitive to the need to be ‘seen as a useful and trusted source of assurance and information for people who use services and the public’ (p14), but then they write that they need to consider ‘the extent to which the organisation should be positioned publicly as ‘the’ authoritative provider of information about essential standards’ (p15). I feel the key question the CQC needs to answer is this: If the CQC say that a care provider is compliant with essential standards of quality and safety, can the public, policy makers and the courts, have faith that this is actually the case? It seems to me that if the answer to this is in the negative, it is unclear what role the CQC actually have in social care.

The CQC also appears to be setting itself apart from predecessor commissions that were set up to drive improvements in the care sector, when it says:

‘Expectations about what CQC can and cannot achieve through regulation are often unrealistic, particularly in relation to an improvement role.’ p9

and

‘In light of the pressures it faces, clearly articulating CQC’s role as a ‘regulator’ is important. In doing so, the Board considered a priority was making it clear that CQC’s focus must be on protecting people from risk of poor quality care, and as such the organisation cannot be expected to occupy both a regulatory and an “improvement” space.’ p14

Elsewhere in the report CQC do talk about driving improvements through enforcement action, so I’m not entirely clear what alternative perception they are trying to promote in relation to ‘improvement’. After reading the report I felt even less clear about what ‘expectations’ I should have of CQC, and I look forward to more work and discussion from them on their role. It seems to me that the future of the CQC may very well hinge on the extent to which they feel able to challenge the government and polices that present risks to their role as a regulator and to the sector as a whole. The reports of the predecessor commissions into the state of health and social care must have made uncomfortable reading for many in Whitehall. Now more than ever the sector needs leadership and representation from those with knowledge, experience and integrity to confront governments with the realities of policy directions (and re-directions) and resource shortfalls in social care. Who better to occupy this role than the regulator themselves?

One last thing to bring to your attention is this fantastic (but somewhat depressing) report by the National Development Team for Inclusion which explores incentives for change for private sector providers of hospital services for people with learning disabilities. In the aftermath of the Panorama program documenting the abuse of adults at Winterbourne View a large coalition of experts wrote to David Cameron to highlight their concerns with models of hospital care for adults with learning disabilities. In this latest report by NDTi they explore the reasons why long term hospital care is being used despite a policy drive away from services like this. They conclude that a range of factors, linked essentially to the way private sector services are financed and commissioned, means that policy directions have little traction with the private sector – who provide the majority of services today. They write:

‘What exists is a sub-system of the learning disability health and social care system that is at odds with evidence and policy but which continues to operate because noone with power has the incentive to change it. It suits the providers of the hospitals because it meets their corporate financial needs. It suits many commissioners because it provides a fall back position (often one of “out of sight out of mind”) when poor commissioning of services for people who challenge has led to service breakdown. It suits many families because, following years of their relative being passed between services that did not work, they at least experience a degree of continuity and security within the institutional hospital setting. The only people it does not suit are the people with learning disabilities themselves, who are not supported to live a decent quality of life, in their communities, with support to address their unique needs – but their voice has little or no power within the system.’

It suggests that changing the overall landscape of service provision for adults with learning disabilities that require high levels of support may be extremely challenging. Even with the will from government, the reality is that with the privatisation of services ordinary policy initiatives offer no guaranteed outcomes. The question is, are there other levers that could be used to improve services than wishful thinking from Whitehall?

I was musing on the depressing implications of the report this weekend, when I drove to Winterbourne View itself to take a photograph for a magazine article I am writing. It was only after I had driven outside the city limits, far from any shops or anything resembling a community, and I was stood outside of it taking a picture that it occurred to me: what kind of “rehabilitation”, what kind of life, could possibly be offered by a long term placement in the middle of a business park?

About The Small Places

The Small Places blog is written by Lucy Series, you can read more about her and the blog on the 'About' page.

Blogs, including this blog, should never be relied upon as a source of legal advice. They may be out of date, inapplicable to your circumstances, or just plain wrong. If you need to find a solicitor, you could try the Law Society's find a solicitor webpage. The Mental Health Lawyers Association also list solicitors who do Court of Protection work. Some members of the Bar Pro Bono Unit do Court of Protection work.

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